Sandy:

Why are you screaming?

In any case, it would be nice for the President elect to line up a cabinet, not to mention the swarm of lower political appointees, before the President elect assumes power. Otherwise, who exactly do you propose will run the federal bureaucracy? The Bush holdovers?

I am unsure what a hypothetical President elect Obama would gain by assuming office immediately and having to rely upon all the Bush holdovers to keep the government working while he assembles his team. Meet the new boss, same as the old boss?

If Mr. McCain wins, what will you care if he does not take power for ten weeks?

Anyway, how long did it take you to get the Iowa Electronic Markets to set up your account? I am still waiting impatiently. The potential return on a winner take all McCain contract is now 6-1 and the McCain vote share contract is at an utterly insane 46.9%. of the vote. With the polls tightening again (Obama lost about 2 points over the weekend on the likely voter tracking polls), I do not see these bargain prices lasting.
 

I note that Sandy has been making this point repeatedly over that past several years -- indeed, a decade even, based on his article in "Constitutional Stupidities" that identified the delay between election and inauguration as his nominee for the stupidest provision of the Constitution. Given the plethora of other candidates (lifetime judicial tenure, equal representation in the Senate, an amendment process that is nearly impossible, etc.) this choice by Sandy is striking.

When I was a graduate student at the University of Texas, Sandy had been working on conferences such as the Bicentennial of the Louisiana Purchase. All of the sudden he hosted a conference on Torture, in the fall of 2003. I thought this was an odd topic for a Professor of constitutional law. But by the time Abu Ghraib became notorious, the collections of essays edited by Sandy was already at the publisher. Sandy had foresight, based on the Patriot Act, and the AUMF, and the character of this administration, that led him to study an important issue most of us had not contemplated. At the time I though the U.S. might be capable or extraordinary rendition; I had not thought it capable of torture itself.

So when Sandy makes the point IN CAPITAL LETTERS to warn about the dangers of a repudiated administration in office for 10 weeks after the election, and does so AGAIN AND AGAIN AND AGAIN, I tend to think we ought to pay attention. He has been worried about this for a long while. And I am worried too. This will be a truly unaccountable administration. With all the powers of the presidency, military and otherwise.

Will they merely make mischief, or precipitate a(nother) crisis? Their actions could conceivably make Mark Rich-style pardons look like chump change.
 

there are two ways of approaching this suggestion. on an ideal level, bring on the petitions. i would sign one right now if it meant that cheney, bush, et. al. wouldn't bother waiting for the election to get out of town, let alone leaving on the day after. i would do it, even just to get mccain into town, even though i would prefer that obama were elected. so bring on the petitions.

on the other hand, there is the real world to deal with. we all know petitions do not have the force of law. we also know that cheney, bush, et. al. would pay no attention to such a petition, even if signed by everyone in america, who also attached a dollar each as a going away present.... so, seeing as the petitions will do nothing except waste paper and ink, what else, sandy, do you propose that is constitutionally feasible?
 

I'll sign the petition. Where is it?
 

The "recovery," such as it is or will be, is being led by Gordon Brown, as Nobel Prize-winning economist (sorry, Mark) Paul Krugman pointed out in today's column, and most certainly not by the Bush Administration and Henry Paulson.

Krugman really ought to stick with academics rather than silly pontificating over at the NYT.

The Brown and Paulson plans do not address the same problems.

The Paulson plan addresses the underlying problem of valuation and marketing of the mortgage debt.

The Brown plan addresses the symptom of banks' reluctance to lend to one another based on the questionable collateral by guaranteeing the lending in exchange for taking partial ownership of the banks.

While it is understandable that the quasi-socialist Krugman would love the part of the Brown plan which quasi-nationalizes the banking industry, the reason that Paulson did not take the nationalization route until this morning is that Congress refused to vote for nationalization, not because Bush opposed it.
 

If, as Sandy has argued for some time now, President Bush utterly lacks presidential authority, Sandy's problem solves itself. The president-elect will have that authority as soon it is clear who won.

If, on the other hand, President Bush continues to have a decent quantum of presidential authority, what reason do we have to think that he won't work with the president-elect in order to provide for a smooth transition?
 

Why on earth would Cheney and Bush agree to this? What is their motivation? The good of the country? They don't see it that way. I frequently caution my coworkers that if their business plan requires people to act contrary to the way people have acted in the five thousand years of recorded history, then it is not likely to succeed. That's the fundamental problem with Levinson's plan. People who've spent their entire adult life grasping for power seldom like to give it up to their opponents. Maybe the reason pundits don't want to endorse this idea is that it is hopelessly naive.
 

pinkerd:

If, on the other hand, President Bush continues to have a decent quantum of presidential authority, what reason do we have to think that he won't work with the president-elect in order to provide for a smooth transition?

His past record? That he's an enormous pr*ck??

Then again, we wouldn't want him co-operating in any way. Pretty much anything he touches turns to sh*te....

Cheers,
 

Well, Sandy my boy (or girl, who knows), there's this little thing called the Constitution that you so conveniently cherry-pick from. The Constitution calls for the Electors (later called the Electoral College) to elect the President.

See, Sandy, since you missed it in 8th grade civics, the popular vote does NOT elect the President. That is reserved for the Electoral College, and that takes place, oh, about six weeks after the election.

So, ya see there, Sandy, you shouldn't espouse violations of the Constitution if yer gonna try to be considered a serious thinker. Leave that to us Rednecks out here in Flyover Country.

Since you are a dolt and a truther, why don't you spend your time figuring out who was on the Grassy Knoll? That would be a better use of your time.
 

Uh, TiW, before you go insult someone, you might at least have your facts clear. The mechanism Prof. Levinson proposed has nothing to do with the EC and doesn't depend on the actual vote there.

The president-elect will have that authority as soon it is clear who won.

If you're referring to moral authority, you may be right. But only the actual occupant of the White House can sign bills into law. If we truly need emergency legislation, and Bush is unwilling to sign such legislation, then the current design requires us to suffer rather than pass it.
 

" For the life of me, I can't see any objection to this,"

Why in God's name should Dick Cheney or George Bush give a damn if Democrats think Barak Obama would be a better President? Has there ever been a time when they didn't think that? Or that Republicans didn't think any random Republican was better than the Democratic occupant of the Oval office? 'Cause that's who's going to be signing your petitions: Democrats.

That's the fatal flaw of your scheme: There isn't the consensus you imagine ought to exist that Bush is monstrously incompetent. The best guy for the job? Not nearly. Existentially bad at the job? In your fevered imagination, and only there.

"If it were a child at stake, none of you would accept bureaucratic mumbo-jumbo as a sufficient reason to deprive her of the needed drug."

If the only way your child could receive the healing touch of Obama's hand upon her brow was for everyone else to consent to it, too, you damned well would wait, and properly so.

That analogy suffers because your child can get an experimental drug without everybody else having to take it. So the fact that other people don't want it is no reason he should wait.

But for you to get The One on an accelerated schedule means we all get him, too. And I'm not in that much of a hurry to have Mr. Joyce foundation board member issuing orders to the BATF.
 

Mark:

I'm not a Bush supporter, but I see no reason to think that the current president won't work with Congress to address any emergencies that may arise more or less on the home front.

Does Sandy's nightmare scenario, which takes as its point of departure the financial crisis, really have anything at all to do with the economy or the home front?

Just asking.
 

Sandy --

As I understand it, you say Bush's repudiation arises from his low poll results; the outcome of the election only legitimates the succession. Would you say that Reagan was repudiated after Iran-Contra, or that Clinton was repudiated after the Gingrich Contract election or the Lewinski scandal? In both cases, polls were low and neither man's presidency was the same afterwards, but there was no intervening election to legitimize a successor. In fact, in Clinton's case, he was re-elected after the Contract election. I may not like it that Bush enters into a status of forces agreement with Iraq or pardons Alberto Gonzales, but I'd rather not see a president pushed out without some understood process, which in our case means impeachment.
 

Ah, Marky-Mark, if you don't know who won the election on Nov 5, how do you know who to put forward in the VP slot, when Cheney resigns, "to be replaced by the winner of the previous-day's election, who will be promptly confirmed by the Congress under the 25th Amendment"?

Just a simple question...but gets at the heart of my previous post.

The Electoral College is the key...and Sandy missed it. Some constitutional expert!
 

Existentially bad at the job? In your fevered imagination, and only there.

Not only there -- lots of us think Bush is existentially bad at the job.

But I agree with you that Bush isn't going to go along with this plan regardless of the situation.

I see no reason to think that the current president won't work with Congress to address any emergencies that may arise more or less on the home front.

I see plenty of such reasons. We saw it with the original bailout plan. Paulson has been dragged kicking and screaming to do the right thing. Now, he's pretty much gotten there, but it took 3 weeks longer than it should have taken. I wouldn't expect Bush himself to agree to stimulus packages unless they include actively harmful proposals such as more tax cuts for the rich. So yeah, I do think he would obstruct good policy.

Does Sandy's nightmare scenario, which takes as its point of departure the financial crisis, really have anything at all to do with the economy or the home front?

I doubt it. While I think the situation is serious, and while I think delay until January is unfortunate, I do expect an Obama presidency can restore the economy even with the delay. It'll take a little longer and cost a little more, but this isn't like a medical emergency.

Yet.

Ah, Marky-Mark

I'd work for less money a picture. I like his movies, though. The Shooter was fun. "Still got the shovel." Heh.

if you don't know who won the election on Nov 5, how do you know who to put forward in the VP slot

For the obvious practical reason that the EC winner will be a formality. We can count the EC votes on Nov. 5; the rest is mere form.
 

The electoral college point is utterly irrelevant. If Dick Cheney resigns, George W. Bush can nominate anybody in the universe who is qualified to the president (i.e., no non-natural born citizen). He could nominate his father, who is not constitutionally estopped from the White House in the way that Bill Clinton is, because he's served two full terms. But one would expect Mr. Bush to nominate the winner of the election--and only a willful idiot (I'm sorry for my intemperance) believes that we need the electoral college to tell us who won the election, unless it's a tie--in order to provide some succor and stability to a country on the edge.
 

You want to exclude a true possibility (a tie in the Electoral College) because it's an inconvenient truth? Sorry, that title is taken.
 

Well Dick Cheney won't resign even if you had 50 million signatures.

The 111th Congress could ram through a summary impeachment and conviction of Bush and Cheney on January 3rd though, assuming there's a sufficiently huge landslide.

I guess the 110th Congress could pass a law setting an earlier date than January 3rd also...

Hmmm -- wonder if Bush could veto that, or does the 20th amendment grant exclusive discretion to Congress?
 

"Not only there -- lots of us think Bush is existentially bad at the job."

Well, yes. Essentially all Democrats. Look, one of the chief characteristics of our divided politics is that neither party approves of the people the other party is electing. Bush went into office with a significant number of people thinking he should resign on the spot. Ideally after replacing Cheney with Gore. Obama will, too.

It just isn't significant in this kind of situation that a large number of people think you're uniquely ill suited for the job. That's a given!

Sandy, you want a 'reform' by which really unpopular Presidents can be replaced in mid-term. But Congress is less popular than the President!

What do you think of a reform where the President can call a national referendum on the subject of whether everybody in Congress, without exception, should have their careers permanently terminated? A way out of this Prisoner's dilemma where we all hate the incumbents, but have to retain our own in self defense.

Betcha it would pass.
 

I don't want to hijack the thread, but Bart, you can't seriously be trying to spin recent polls. You see RCP's electoral college numbers? Heck, most conservative bloggers and pundits have basically given up.
 

I think prof. Levinson suffers from a combination of tenuritis and post-60's radical syndrome. I suppose it is simply unacceptable to him that something like the constitution can keep his prefered candidate from taking office at a historically unprecedented early period. So, Sandy, did you make this call for Eisenhower in '52, Nixon in '68 or Carter in '80? Arguably those periods were worse for the country (if you want to see a real botched war, look at Korea); Johnson and Truman were repudiated by their own party and Carter lost by 10 points with hostages in Iran and the economy in a bigger funk than it currently is. I'm sure in 1980 you were mounting petitions to get RR appointed VP and Carter to resign by November 10 since the country just couldn't take another day of Carter's incompetence. What? You didn't? Could that possibly be because you are a liberal democrat and just mayb e voted for Carter (or were you an Anderson man?)

Secondly, the post-60's radicalism is amusing . . . oh, we'll have a petition! Golly, let's have a march while were at it, maybe we can surround the pentagon and try to levitate it or perhaps we can get Obama's buddies and a certain law professor to bomb the pentagon (how the F*@# did she get to be a law professor, but I guess that's another post for another time).

Of course, the only thing more useless than a petition is an online petition, so good luck with that too.

Oh well, keep living in your dream world. Jeepers, are you going to pass a faculty senate resolution too? Surely that will strike fear into the heart of Cheney . . .

FWIW, I think Obama will probably win 53% of the vote, a clear victory but hardly a historical repudiation of anything. Had it not been for the financial meltdown, I think McCain would have won, but that's like saying if it wasn't for gravity, I could fly. BTW, if Gordon Brown is so goddamn brilliant, how come all of his banks are failing just like ours?
 

Nothing I say could possibly persuade Scott of my bona fides. But note that Jonathan Chausovsky pointed out that I have been riding this particular hobbyhorse at least since 1998, when I pronounced the hiatus between election and inauguration the "stupidest" feature of our Constitution, and I would be more than willing to apply my principle to Democratic incumbents.

But most of you who disagree with me prefer to attack my integrity instead of my arguments. That's not true of Richard Friedman. Our disagreement is why we shouldn't adopt a new "convention" (which wouldn't require a Convention) that an incumbent president, following an election that chooses the candidate of the other political party, gracefully provides a way that the "people's choice" (putting electoral college criticisms to one side for the moment) take office as soon as is reasonably possible, given the costs of delay in a modern world where a crisis requiring presidential decision (and authority) can arise all too quickly. Even if Richard continues to disagree with me, I trust he will not make the kinds of smarmy comments that I'm just a partisan Democrat instead of a reasonably patriotic American trying to think of what would best serve our common polity in the 21st century.
 

Sandy,

Scott is just projecting. Anyone who's actually bothered to pay attention is not in doubt about your integrity.

And I find his contempt for petitions very telling. Do you suppose he's aware that the right to petition the government is guaranteed by the 1st amendment?

Or that he thinks Ben Franklin, et al, were just radicals chasing butterflies when they petitioned George III?
 

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I think prof. Levinson suffers from a combination of tenuritis and post-60's radical syndrome.

Way to maintain decorum! If this is how you speak in a public forum, I'd love to see what happens when somebody's cart is in your way at the supermarket.

Seriously: if they have video available at your local Safeway, I'd love to get a copy to post on Youtube.

I think Obama will probably win 53% of the vote, a clear victory but hardly a historical repudiation of anything.

Jeepers, Mr. Republican Guy, I thought 50.7% of the vote constituted "the kind of mandate that few politicians are ever fortunate enough to receive."

If 50.7% constitutes a clear mandate to do whatever the hell one pleases, forgive us if we get a little bit excited about the prospect of a 53% win that will surely lead to a "long, national cultural renewal." It will lead there, won't it?
 

I don't think I'm questioning your integrity as much as questioning what makes this situation so historically unique that it is now incumbent on GWB to resign when no other president in the last 220 years has done that. Based on your past posts I have come to the conclusion that it is your antipathy to GWB that leads you to posit what are frankly silly arguments. The historical points I make is that there were numerous presidents in similar situations in the past and the republic has survived just fine even though Jimmy Carter et al. served an extra few months, and I think it would have been ridiculous to suggest he should have resigned in 1980 or it was important to get Richard Nixon in sooner.

Why have a break between election and inaugeration? I can think of all kinds of good reasons. It gets the new administration time to pick their cabinet in the calmness of victory rather than the storm of the election; it allows the losing side to cool down after a heated election so we can all come together as Americans and have the pomp and circumstance of the inaugeration; it allows the new administration to catch their breath and reflect on things before implementing them and knowing they have a four year time horizon and not a 24 hour news cycle.

As far as petitions go, I think they are profundly undemocratic and basically useless. If I got 5 million signatures saying the Uigers should be kept in Guantanamo or suspected terrorists should be summarily shot would that change your opinion of what should be done? Should it change the president's opinion? Why should a million signatures about GWB mean anything next to the 100+ million who voted in 2004 and will vote in a few weeks?

Finally, I suggest it is you professor Levinson who is making these unprecedented proposals and it is you who should have the burden of proof. In my estimation, you have not met that burden by a long shot. And I do think it is significant that as far as I'm aware this was not an issue to you in 1980 which was by far the largest repudiation of a sitting president in modern history. Again, maybe Obama will win by more than 10 pts but regardless I would suggest that there is no reason to change what has worked just fine so far.
 

I think Obama will probably win 53% of the vote, a clear victory but hardly a historical repudiation of anything.

53% would be historic. Only two Democratic presidents since 1832 have gotten more than 51% of the popular vote, FDR and LBJ.

You want to exclude a true possibility (a tie in the Electoral College) because it's an inconvenient truth?

Nobody's assuming a tie. The assumption is that the election shows an unambiguous winner. His suggestion obviously doesn't apply if the outcome is in doubt.

Bush went into office with a significant number of people thinking he should resign on the spot.

Probably so, but at that point in time nobody thought he was "existentially bad" at the job. Only from painful experience do we now know that. "I told you so" is cold comfort.

It just isn't significant in this kind of situation that a large number of people think you're uniquely ill suited for the job.

In the ordinary case, I agree. Approval ratings fluctuate and we don't have presidents resign due to those fluctuations.

I'd call it significant when a president's approval rating is at 23% and his disapproval is the highest ever measured. That, combined with the near end of his term, means that we might well think about the way we handle the succession. While I don't necessarily agree with Prof. Levinson's proposal here, there's nothing unconstitutional about it, and I would certainly favor moving the transition date up to, say, December 1 or some other reasonable date.
 

As far as petitions go, I think they are profundly undemocratic and basically useless.

That's an odd description of a practice expressly protected in the Constitution.

And I do think it is significant that as far as I'm aware this was not an issue to you in 1980 which was by far the largest repudiation of a sitting president in modern history.

I think Nixon's forced resignation was a much greater repudiation. So was LBJ's forced withdrawal from the race.
 

"I'd call it significant when a president's approval rating is at 23% and his disapproval is the highest ever measured."

Then why not similarly repudiate Congress? At this rate, the Congressional approval rating is going to be in single digits by the time Sandy would have them playing a roll in replacing Bush early.

I think it's a stretch to claim Bush is the worst President ever. The present economic crisis was a bipartisan production with Congress having a crucial roll, and unless you're positing that Bush has almost supernatural powers of destruction, I don't see how you can blame a crisis which is actually worse in other countries on him.

What we've got here is a historically high level of partisan polarization, such that Presidents have a ceiling approval rate of something like 50% if their entire political base loves them, because nobody on the other side is going to rate them anything better than abysmal. And Bush has done a number of things to piss off Republicans, so he could only go down from 50%.

I dare say that President Obama is going to be plumbing depths similar to Bush's in short order, for the same reason. And I'll confidently predict that, no matter how unpopular Obama becomes, Sandy won't be calling for him to resign.
 

Professor Levinson claims that "most of you who disagree with me prefer to attack my integrity instead of my arguments". I don't believe I attacked his integrity at all. I simply want to know how he thinks his proposed solution will work when the key actors have to act against their own interests. He's essentially asking Cheney and Bush to admit that they are dismal failures and step down. How do we convince them to do that? Especially when Cheney, in particular, has stated quite firmly that he believes that the public essentially should have no input in governing except through elections. He clearly believes that the Vice Presidency belongs to him until January 20, 2009. I have a limited amount of time and energy in to pursuing apparently quixotic quests. Why should I pursue this rather than my preferred one, attempting to get Cheney and Bush indicted for war crimes?
 

the Congressional approval rating is going to be in single digits

National polls are meaningless for officials who are elected locally. I don't agree with Sandy's idea, but this sort of comparison is dishonest.
 

Then why not similarly repudiate Congress? At this rate, the Congressional approval rating is going to be in single digits by the time Sandy would have them playing a roll in replacing Bush early.

bartbuster's answer is basically right. You can't use a national poll to judge Congressional popularity for two reasons:

1. It's a collective body rather than a single individual. One of the reasons we have only a single president is so that we can hold him personally responsible. We can't hold "Congress" responsible, only individual Members.

2. Members are elected in districts/states. They're like lawyers -- most people like their own, it's only the other guy's who's bad. Thus, people quite rationally blame someone else's Representative for failure but not their own.

I think it's a stretch to claim Bush is the worst President ever.

Well, it's not a huge stretch, but I agree that he's not the worst. People have forgotten just how bad Buchanan and Andrew Johnson were. Bush is third IMO, but there's a gap between him and them.

Subsequent events can always change the perception of Bush, of course. That's unlikely at this late date for the other two.

The present economic crisis was a bipartisan production with Congress having a crucial roll

Agreed. It would make sense to blame Republicans generally (and some Dems in particular), with Bush getting a leading role but not the entirety of the blame.
 

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Sandy Levinson writes:
For the life of me, I can't see any objection to this,

I can. "W" himself, in doing so, would be admitting to complete failure in entirety by his own action. That's something he's more than unlikely to do out of nothing more than personal pride; he is human. It also seems that Bart's point about a presidential candidate taking office with an unassembled cabinet has merit. While people may vote based on an individual's charisma, the president's advisor's are as much a part of an administration's potency and to appoint in haste might be imprudent.
 

I appreciate the replies. I cannot testify under oath what I was thinking in 1980 after the election, but I hope that I at least noticed that it was "awkward" to have Jimmy Carter negotiating with iran when it was uncertain what the position of the Reagan Administration would be. As it happened, Reagan "ratified" Carter's negotiations, so there was no harm. But consider Bush's sending troops to Somalia in December 1992m, which, whether or not a good idea, had remarkable consequences for the Clinton presidency, as we can now realize. And does Scott really think there was no cost to having no real government in the Secession Winter of 1860 or the Depression Winter of 1932?

Nothing is cost free. It would indeed be awkward to inaugurate either Obama or McCain on, say, November 10 before they had picked their full cabinet. But one of my points is that waiting until after election to select a cabinet is itself a bad feature of our system inasfar as we end up casting ballots blindly, not knowing who will fill extremely important offices and have the president's ear.

I agree with William of Ockham that the strongest practical argument against my proposal is that it is inconceivable that the authoritarian Dick Cheney would pay any attention to millions and millions of Americans, including many in his own party, who would register their belief that it's time for him to go. But this is just another illustration of how the rigidities of our defective Constitution make us unwilling even to contemplate improvements, because the all-too-realistic answer (meeting Ockham's razor) is that nothing can be done (save rearranging the deck chairs on the Titanic).

But we're about to have a natural experiment in which we can see if Bush's extra 10 weeks (at last, because of the 20th Amendment, passed in another era, six weeks shorter than it used to be), proves costly to the country and to the world. For our collective sakes, I hope not.
 

Prof. Levinson:

I cannot testify under oath what I was thinking in 1980 after the election, but I hope that I at least noticed that it was "awkward" to have Jimmy Carter negotiating with iran when it was uncertain what the position of the Reagan Administration would be.

There are those that are of the opinion that Reagan did 'negotiate' with Iran, as evidenced by (amongst other things, the hostage release on the day he was inaugurated). ;-)

In any event, Reagan certainly did take a unique approach to 'negotiating' with Iran....

Cheers,
 

Sandy:

It does seem that your concerns are much less about the economy and/or the home front than about the possibility that Bush might intervene militarily somewhere.

Your best example from recent history is, of course, Somalia. Was Clinton consulted about intervention in Somalia? Did he support Bush Sr. on this? These are not rhetorical questions.

I know you won't argue that Clinton couldn't have known whether intervention in Somalia was good policy. That line would defeat the entire argument.
 

Your best example from recent history is, of course, Somalia. Was Clinton consulted about intervention in Somalia? Did he support Bush Sr. on this? These are not rhetorical questions.

There have been other times in US history when outgoing presidents have taken steps which seem deliberately intended to limit their successors. John Adams famously appointed midnight judges (including Marshall). Eisenhower left JFK with the Bay of Pigs. Johnson announced a bombing halt just before the 1968 election.

While I wouldn't necessarily call any of these mischievous, there's a clear problem with leaving people in power after they become unaccountable.
 

That's an interesting question about Clinton and Somalia. I don't recall seeing any stories that Bush had consulted Clinton, but I assume that one could track it down and find out if that's true.

And, of course, Bush commuted his friends involved in Iran-Contra after his defeat, just as almost everyone expects his son to pardon all of the torturers as a little Christmas gift.